U.S. v. EPPOLITO

The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge

MEMORANDUM and ORDER

This is an application for bail pursuant to the United States
Constitution and section 3142 of title 18 of the United States
Code. The government has charged the defendants with multiple
murders while they were policemen acting in aid of Mafia members'
criminal activities in the 1980s and early 1990s. A charge of
illegal drug dealing in the twenty-first century is also made.

The court has held a full hearing on the bail issue. For the
reasons indicated below, bail with strict conditions of control
to protect the public is granted.

The government has conceded that the statutory presumption
against bail based upon allegations of drug dealing should not
apply. Under subdivision (e) of section 3142 it is presumed in
drug cases that no condition or combination of conditions will
reasonably assure the appearance of the person or the safety of
the community. Because of the government's concession, that
presumption is inapplicable.

The issue under the statute and Constitution is whether any
condition or combination of conditions will reasonably assure the
appearance of the defendant at trial and the safety of other
persons and the community. Unless the court finds that no such
condition or combination of conditions will assure the
defendant's appearance and the community's safety, bail must be
granted.

To conclude that no condition or combination of conditions will
reasonably assure the safety of any other person in the
community, the judicial officer must require "clear and
convincing evidence." The statutory burden on the government when
there is no presumption is heavy. Some 80% probability is
required. See, e.g., United States v. Copeland,
369 F. Supp. 2d 275, 286-87 (E.D.N.Y. 2005) (citing authority). Under subdivision (g) of section 3142 the court must first
consider the nature and circumstances of the offense charged. The
offenses charged here could hardly be more serious. This is a
crime of violence under subdivision (f) of section 3142. The
maximum sentence is life imprisonment.

Second, the court must consider "the weight of the evidence"
against the defendant. 28 U.S.C. § 3142(g)(2). The weight of the
evidence adduced thus far is not strong because the statute of
limitations problem is serious, as indicated at the hearing. See
Hr'g of July 7, 2005, at 65-69.

Third, to be evaluated are: the history and characteristics of
the persons charged, including the person's character; physical
and mental condition; family ties; employment; financial
resources; length of residence in the communities; past conduct
related to drug or alcohol abuse; criminal history; and the
defendant's record concerning appearance at court proceedings.
28 U.S.C. § 3142(g)(3)(A). The evidence submitted to date on all of
those issues favors the defendants. Their record, at least on its
face, as police officers, against whom no other criminal charges
have been made, is favorable. Neither defendant was on probation,
parole, or other limitation of activities at the time of the
alleged crimes. See 28 U.S.C. § 3142(g)(3)(B).

Neither defendant is likely to abscond before trial. There is
no reason to believe that the defendants will not appear in view
of the extreme financial dangers to their families should they
fail to appear as required.

Neither appears likely to be a threat to others. See
28 U.S.C. § 3142(g)(4). It is highly unlikely that these defendants,
at this advanced stage of their lives, present any serious threat
of criminal conduct while they are released on bail. It is highly
unlikely that they will have any possibility themselves, or with others with whom they might
associate, to threaten possible witnesses.

The court must, under the statute and the Constitution,
approach the problem with the presumption of innocence in mind.
These defendants are presumed to be innocent. Until the
government proves them guilty beyond a reasonable doubt, and a
jury finds them guilty beyond a reasonable doubt, they must be
deemed to be innocent.

The defendants' presence in jail prior to trial will
substantially impede the work of their attorneys. Extensive
wiretaps and other evidence will require many hours of
consultation between attorneys and clients that are difficult
under jail conditions.

The defendant Eppolito shall be released on bail. A five
million dollar bond is required, secured by the personal bond of
defendant; by the home which he and his wife own in Las Vegas
with an equity of approximately $400,000; with the home of his
daughter Andrea Eppolito in Las Vegas with an equity of
approximately $100,000; with the home of Angelo and Sheila
Todisco, Mrs. Eppolito's brother and sister-in-law, with an
equity of approximately $500,000; and with the home of Paula and
Albert Guarneri, defendant's sister and brother-in-law, with an
equity of approximately $900,000.

If any mortgage of defendant's property is required to pay
legal fees for either defendant, advance consent from the court
is required.

The court must consider the source of the property to be
designated for potential forfeiture in case there is a violation
of bail conditions. See id. There is no proof that any of the
homes proposed as collateral, except possibly for the homes of
the defendants themselves, were acquired through criminal
activities. Mr. Eppolito shall be under house arrest residing at the home
of Angelo and Sheila Todisco, with an ankle bracelet. The house
is to have only one telephone landline. The government shall have
the right to record telephone conversations from this telephone
in the residence. None of the members of the residence shall use
a cell phone while in the residence. They shall communicate only
by telephone from within the residence by that one telephone. The
defendant may use the residence telephone to speak only to his
attorney, spouse, children or grandchildren. He shall not use any
other telephone, cell or landline. He shall not communicate by
e-mail.

The government shall have the right to inspect the home at any
time, to see that there are no criminals or suspected criminals
there. The defendant shall have no association with, and shall
not speak to or otherwise communicate with, directly or
indirectly, any criminals, members of the Mafia or persons
convicted of a crime.

The same conditions apply to Mr. Caracappa. They include five
million dollars bail, secured by his personal bond; the equity
remaining on his and his wife's home in Nevada in the estimated
amount of $500,000; the home of his mother with an equity of
approximately $500,000; and the home of his brother with an
equity of approximately $350,000. The defendant shall reside with
Mrs. Sadie Caracappa, his mother.

Defendants may go to and from their attorneys' offices for
legal consultation. Before they leave their residence they must
inform pretrial services; they must return forthwith; and they
must inform pretrial services when they return. The attorneys
agree to take reasonable precautions to make sure that defendants
proceed promptly to and from the law office and that they do not
do anything untoward while they are in the office. Mr. Caracappa
may exercise in the presence of his attorney in a gym in the same building as his
attorney's office.

This order is stayed for ten days to permit the government to
appeal and seek a further stay from the Court of Appeals for the
Second Circuit.

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